Religious groups must be free to practice their faith without fear of government intrusion.
Religious groups must be free to practice their faith without fear of government intrusion.
F or centuries, Catholics have approached the Sacrament of Confession seeking mercy and reconciliation with God. What a penitent says in the sacrament is held in absolute confidence. This protection — known as the seal of confession — is among the oldest and most solemn obligations in the Catholic Church, grounded in the Church’s teaching that, in the sacrament, penitents are confidentially confessing to and receiving forgiveness from God. Priests are strictly forbidden from revealing what they hear in confession, and any priest who breaks that seal is automatically excommunicated. As the canon law of the Catholic Church makes clear, “it is absolutely forbidden for a confessor to betray in any way a penitent in words or in any manner and for any reason.”
But now, although in service of the noble aim of protecting children from abuse, the State of Washington has passed a law that threatens Catholic priests with jail time for refusing to violate that core tenet of their faith.
The law, set to take effect on July 27, requires priests to report suspected abuse or neglect heard within the Sacrament of Confession, despite the Church’s centuries-old teaching that confession must remain completely confidential. Those who refuse face up to a year behind bars, thousands of dollars in fines, and civil liability.
Intruding into the Sacrament of Confession to protect children is unnecessary. From the 1980s onward, the Catholic Church in Washington has taken great strides to root out the evil of child abuse. The dioceses of Seattle, Spokane, and Yakima have each adopted and implemented policies that go further in protecting minors than Washington law requires. For example, all clergy and lay staff in the dioceses are required to report to law enforcement or child protection agencies when they have reason to suspect abuse.
The only exception, following centuries of Catholic doctrine, is what is heard within the Sacrament of Confession. But even in those cases, priests do not ignore the problem. If a penitent confesses to abuse, the priest can urge the person to turn himself in, to seek help, and to make things right. When the penitent is a victim, the priest can guide the person toward safety and justice.
In fact, the Washington State Catholic Conference supported the intent of the new law and asked only to protect the sacred confidentiality of the Sacrament of Confession. It is that narrow exception — one that we believe the First Amendment affords them — for which some of our clients’ predecessors paid the ultimate price.
History bears witness to the gravity of a priest’s obligation to maintain the seal of confession. In the 14th century, Saint John Nepomucene was drowned for refusing to divulge to the jealous King of Bohemia the confessed sins of the king’s wife. In the 18th century, Father Andreas Faulhaber was executed by Frederick the Great for refusing to disclose to Prussian authorities the confessed sins of an army conscript accused of disloyalty. And in the 20th century, Blessed Felipe Císcar Puig was executed during the Red Terror of the Spanish Civil War because he would not reveal the confessed sins of Catholics. These are not folktales — the seal of confession is a sacred boundary, attested to by the blood of martyrs, that the church refuses to break.
Our nation has long respected that line. For centuries, courts and legislatures across America have treated the confessional seal with the same deference afforded to attorney-client or spousal privilege. But, under the state’s new law signed in May, priests who learn of abuse through confession must report it to state authorities or face up to 364 days in jail, a $5,000 fine, and potential civil liability.
Despite purporting to protect minors from “abuse and harm,” the law does not extend to others who might hear — or who are even more likely to hear — the same information. For example, attorneys, domestic violence counselors, and teachers’ union representatives are still protected by long-standing privilege rules. Even relatives of abused children are not required to report. There is no reason why priests who hear about abuse through a purely religious activity should not likewise be exempted.
With the help of WilmerHale — along with attorneys at the Becket Fund for Religious Liberty and First Liberty Institute — Washington’s Catholic bishops recently asked a federal court to block the law’s implementation. We’re urging the court to uphold a simple but fundamental, centuries-old principle enshrined by the First Amendment: Religious groups must be free to practice their faith without fear of government intrusion.
We’re confident that the courts will soon affirm that the state has no place intruding into the confessional. A government that can do so betrays the Constitution, threatening the First Amendment rights of every faith.
Mark Rienzi is the president of the Becket Fund for Religious Liberty and a law professor at the Catholic University of America. Hiram Sasser is the executive general counsel for First Liberty Institute.